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Rafzan Ramli and the six other students should be considered as Human Rights Defenders.

Two and a half years have passed, and Rafzan Ramli and his six other student friends are still wondering when they can get back to campus to continue their studies and graduate with degrees or diploma.

The Universities and University Colleges Act 1971 (UUCA) provides that when a student is charged with a criminal offence, he shall immediately be �suspended from being a student�. Thus these students who have been charged in court for the offence of illegal assembly are unable to continue their studies.

These seven students, after having been charged and pleaded not guilty, were subsequently suspended from their universities under the provisions of the UUCA or Educational Institutions (Discipline) Act 1976.

Rafzan and his friends are still suspended and cannot continue their studies and get their degrees or diplomas - even though the alleged criminal offence occurred more than two years ago. Their peers would have all graduated by now and moved on with their lives, possibly now working and earning decent wages. But these students are still in limbo, unsure as to whether they will ever graduate.

The so-called �illegal assembly� took place on 8 June 2001, when about 500 undergraduate students from several universities and institutions of higher learning in Malaysia came together in Kuala Lumpur to protest the Internal Security Act 1960 (a draconian piece of legislation that allows for detention without trial). They called for the repeal of this Act and for the immediate and unconditional release of all those currently detained or restricted under this repressive law. Malaysians and others around the world have been calling for the repeal of these anti-liberty laws for a long time.

Out of the 500-odd students who gathered peacefully to express their protest, Rafzan and his six student friends were arrested. On 19 July 2001, they were charged in court for participating in an illegal assembly, an offence under the Police Act, 1967. All of them pleaded not guilty and claimed trial. Today, almost two and a half years later, their trial is still not over and they remain suspended from university/college.

Absolute Discretion

According to the UUCA or Educational Institutions (Discipline) Act 1976, the Education Minister has the power to at any time, in any particular case, in his �absolute discretion�, to grant exemption to any person from the application of the provisions of section 15D (1) and/or (2), amongst others. This exemption can come with conditions or otherwise.

Now, even though these seven students are not prominent human rights activists, politicians or public personalities, the plight of these young human rights defenders should be a cause for concern among all justice-loving persons.

But alas, the Minister has so far not yet considered the matter, let alone exercised his discretion. In this case, Rafzan is still awaiting a reply to his letters of appeal to the Minister.

The students are not being charged for murder, assault, battery, robbery, theft, drug trafficking or any other offences against persons or property. They are being charged for participating in an assembly to express their opinion about a preventive detention law, the Internal Security Act.

More Restrictions

It is disturbing that students in Malaysian universities and institutions of higher learning suffer more limitations on their freedom and liberty than most other Malaysians. Instead of nurturing creative and critical thinking, the authorities have restricted the space for students to attain wider social concern.

Over and above the various laws and legislation that suppress freedoms and human rights in Malaysia, these students are also governed by the UUCA or Educational Institutions (Discipline) Act 1976. The shackles are many, including restrictions on freedom of association with persons or groups outside the campuses.

Of concern in this case is the unjustified additional deprivation of rights imposed on students charged with a criminal offence even before any conviction by a court of law.

Under the UUCA or the Educational Institutions (Discipline) Act 1976, students in universities or other educational Institutions who are charged with criminal offences will be suspended and, if later found guilty, they will be expelled.

Section 15D (1) of the UUCA provides that:�where a student of the University is charged with a criminal offence he shall immediately thereupon be suspended from being a student of the University and shall not during the pendency of the criminal proceedings, remain in or enter the Campus of that or any other University.�

Section 15D (2) of the UUCA provides that the said student shall immediately cease to be a student if found guilty. By implication, if the student is found not guilty, then he or she would presumably be able to continue studying.

Where Is The Equality?

The established legal principle of �presumption of innocence until proven guilty� seems to have been overlooked when it comes to university students. Normally, when people are charged in court, they can claim trial and be released on bail. They can then go back to work and resume normal life. They would only be required to serve the sentence upon conviction and sentencing.

But when it comes to university students, they are immediately suspended. If they are later found guilty, they would not only be expected to serve the sentence imposed by the court but would also be expelled.

Where then is the equality under the law guaranteed to all persons by our Federal Constitution? Where then is the promise that there shall be no discrimination as stipulated in the Federal Constitution? Those who fail to enter local universities and educational institutions enjoy so much more freedom and liberty than the students in these institutions. They can associate with whomever they want. They can join political parties, contest general elections and even have the chance to become Prime Minister.

We must realize that we are talking about students here, the hopes of their parents and the nation. To deprive them of higher education at the diploma and degree levels is a gross injustice. We are talking here about the right to education and their future. To suspend them indefinitely merely because they have been charged with an offence is very sad.

Human Rights Defenders

Rafzan Ramli and the six other students should be considered as Human Rights Defenders. It must not be forgotten that Malaysia is part of the United Nations. The UN General Assembly on 9 December 1998 through resolution 53/144 adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms (now commonly referred to as the Human Rights Defenders� Declaration).

I believe that the �suspensions� of Rafzan and his six friends go against the principles and the very essence of this Declaration. Now, even though these seven students are not prominent human rights activists, politicians or public personalities, the plight of these young human rights defenders should be a cause for concern among all justice-loving persons.

I am not asking for their charges to be dropped, although that too will be good as they have suffered enough. What I am asking is for their suspension to be immediately revoked so that they can go back to their universities or educational institutions and finish their degree and diploma courses. In fact, in the worse case scenario, even if they are found guilty and sentenced to prison, their sentence should be suspended until they have completed their studies.

A note to the Education Minister:

Think of these students as your children, dear Minister, and allow them to immediately continue their studies in their respective universities and academic institutions so that they can get their degrees or diplomas. In an employment market that places high regard on paper qualifications, their continued suspension is manifestedly unfair. As the Education Minister, you should be projecting more care and compassion for Rafzan and his six friends. To ignore the students� letters of appeal and to allow them to suffer indefinitely doesn�t reflect well on you.

I am sure that all concerned and justice-loving people would also want the Education Minister to immediately exercise his discretion, as provided by law, and lift the suspension of these seven students. Repealing the UUCA and the Educational Institutions (Discipline) Act 1976 would contribute to the growth of well-rounded citizens and, in this spirit, we hope the government will seriously consider this.

Tuesday, September 30, 2003

Malaysia Prisons Department takes over Immigration Detention Centres

The Department expanded its wings when the Ministry of Home Affairs announced in 2002 that all immigration detention centres would eventually be placed under the administration of the Malaysia Prisons Department. This new task serves as recognition of the Department by the Home Ministry for its expertise in managing both inmates and other types of offenders, such as immigration detainees. As a result of this new policy and practice, the Immigration Department is able to concentrate on its primary objectives.

The Malaysia Prisons Department has since taken over six immigration depots. The five remaining immigration detention centres will be handed over in stages to the Department before end 2004. The detention centres are responsible for the detention of illegal immigrants, especially those from neighbouring countries such as Indonesia, Bangladesh, Thailand, the Philippines, and India. Currently, there are a total of about 7000 immigration detainees being confined in immigration detention centres throughout the country.

The handing over of Juru Immigration Detention Centre to the Malaysia Prisons Department

Malaysia Prisons Department takes over Immigration Detention Centres

The Department expanded its wings when the Ministry of Home Affairs announced in 2002 that all immigration detention centres would eventually be placed under the administration of the Malaysia Prisons Department. This new task serves as recognition of the Department by the Home Ministry for its expertise in managing both inmates and other types of offenders, such as immigration detainees. As a result of this new policy and practice, the Immigration Department is able to concentrate on its primary objectives.

The Malaysia Prisons Department has since taken over six immigration depots. The five remaining immigration detention centres will be handed over in stages to the Department before end 2004. The detention centres are responsible for the detention of illegal immigrants, especially those from neighbouring countries such as Indonesia, Bangladesh, Thailand, the Philippines, and India. Currently, there are a total of about 7000 immigration detainees being confined in immigration detention centres throughout the country.

The handing over of Juru Immigration Detention Centre to the Malaysia Prisons Department

Friday, August 29, 2003

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Mahathir weakened all checks and balances including the Judiciary

The 22 years of Dr Mahathir Mohamad�s reign as Prime Minister of Malaysia is coming to an end. It is apt for us now to review the impact that it has had on the Malaysian Judiciary and also the doctrine of separation of powers, which seeks to prevent an over-concentration of power in any the three bodies of government - the executive, the legislature and the judiciary.

1957-1987: A well respected judiciary

From 1957 until the mid-1980s, the Malaysian Judiciary built for itself a reputation of being independent and impartial and was held in high public esteem. There was, it seems, no accusation of judicial improprieties, corruption, bias and/or judicial misconduct during this period.

After Independence, one still had a right of appeal to the Privy Council if one was aggrieved by the decision of the Federal Court. But as time passed, fewer and fewer appeals were referred to the Privy Council and this can be taken only as an indication of the public satisfaction and appreciation of the competence of the Malaysian Judiciary. Finally, it was decided towards the end of the 1970s that this right of appeal to the Privy Council be discontinued. The Federal Court in the early 1980s became the final Court of Appeal in Malaysia, and was renamed the Supreme Court.

When Mahathir became Prime Minister - the first without a legal background to assume this position - he apparently had a rather high regard for the Malaysian Judiciary. At the opening ceremony of the Asean Law Association General Assembly on 26 October 1982, he had this to say about the Malaysian Judiciary:-

�I will always respect the Judiciary. We do not expect the courts to be pro or anti Government, only pro the Constitution and pro the law. The Government always considers the Constitution and the law carefully before we do anything so we expect the Judiciary to be free to judge our alleged trespasses without fear or favour, but in accordance with the law, in accordance with the law of evidence and procedure justly and fairly. We shall always respect their judgments...�

Late 1986 - The onslaught begins

But several years later, Mahathir�s feelings about the Judiciary changed. It was intensified with the decision of the Supreme Court in the case of Berthelsen -v- Director of Immigration, Malaysia & Ors. In brief, the DG of Immigration served a notice cancelling the two-year employment pass of a staff correspondent attached to the Kuala Lumpur office of the Asian Wall Street Journal. The Supreme Court came to a decision that since Berthelsen had not been given the opportunity to make a representation regarding the cancellation of his employment pass, the requirement of natural justice had not been satisfied. Accordingly, the court quashed the cancellation decision of the DG.

Subsequently in commenting on the role of the courts, Dr Mahathir was reported in the 24 November 1986 issue of Time magazine, as saying:

�The Judiciary says, �Although you passed a law with certain things in mind, we think that your mind is wrong , and we want to give our intepretation.� If we disagree, the courts say, �We will intepret your disagreement.� If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is intepreted in a different way, and we have no means to intepret it our way. If we find that a court always throws us out on its own intepretation, if it inteprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish.�

This passage sparked off a contempt of court action instituted by Lim Kit Siang against the Prime Minister. The High Court and thereafter the Supreme Court dismissed this action.

This was followed by the UEM case decision at the Supreme Court, which was a victory for the government, but only by a majority decision with two judges dissenting.

The removal of judges in 1988 clearly showed that it was not just a possibility or a threat but could become a reality if you didn�t behave as you should. The upheaval in 1988 has left a deep-seated fear in many of our judges.

During this time, we also had the UMNO crisis arising from the contest for the UMNO presidency in 1987. Mahathir, who was challenged by Tengku Razaleigh Hamzah, won by a very slim majority of 43 votes. Eleven UMNO members then challenged the validity of this election, which resulted in the High Court declaring UMNO an unlawful society. The plaintiffs appealed to the Supreme Court, and the appeal was fixed to be heard on 13 June 1988 by a full bench of nine Supreme Court Judges. What was at stake was the political survival of UMNO, the dominant party of the Barisan Nasional, and, of course, Dr Mahathir himself.

The 1988 judicial crisis

It was also around this time that not being able to endure �the various comments and accusations made by the Honourable Prime Minister against the Judiciary not only outside but within Parliament�, the then Lord President Tun Salleh Abas, following a meeting with about 20 judges, including Tun Hamid Omar, sent a letter to the King and the State Rulers on 26 March 1988. Following this letter, Mahathir reacted and this led to the removal of Salleh Abas as Lord President on 8 August 1988 by the King based on the recomendation of the Tribunal chaired by then Chief Justice Hamid Omar.

It is instructive to note that the UMNO appeal was also heard on the same day and dismissed the following day.

Subsequently, based on the recomendations of a Second Tribunal, chaired by Edgar Joseph Jr, which was set up to look into the conduct of five suspended Supreme Court Judges, the King on 4 October 19888 ordered the dismissal of Supreme Court Judges Tan Sri Wan Suleiman and Datuk George Seah.

1988: Shrinking judicial power

In the criminal case of PP -v- Dato Yap Peng, the Supreme Court came to the decision that section 418A was unconstitutional on the ground that it violated Article 121(1) of the Constitution, which then provided that the judicial power of the Federation was vested in the two High Courts and such inferior courts as might be provided by federal law.

The Supreme Court in that case had this to say:- �...judicial power to transfer cases from a subordinate court of competent jurisdiction as presently provided by s. 418A cannot be conferred on any organ of government other than the judiciary...� Judicial power broadly defined means �the power every sovereign authority must of necessity have to decide controversies between the subjects, between itself and its subjects whether the right relates to life, liberty or property�, and this power rightly should and must be vested in the third arm of the government, the judiciary.

But alas, the Barisan National, which had more than a two-thirds majority in Parliament and in the Senate was very easily able to amend Article 121 of the Federal Constitution, removing the judicial power vested in the courts. Thereafter, the High Courts have such jurisdiction and powers as may be conferred by or under federal law. This means that the court�s jurisdiction can now be determined no longer by the courts themselves, but by the legislature. The amendment has the effect of allowing Parliament to enact legislation limiting or prohibiting judicial review. Over the past 22 years, there have been many such amendments to laws that prevent the court from reviewing Ministers' and/or government decisions.

From Hamid Omar to Eusoff Chin

Hamid Omar, who chaired the first tribunal that recomended the removal of Salleh Abas as Lord President, became Lord President on 10 November 1988. It is interesting to note that Hamid was presently at the meeting of judges that decided to send the letter to the King and State Rulers.

This was followed by Eusoff Chin, who sat in the second tribunal, being appointed as the head of the Malaysian judiciary.

During this period, there were many controversies which included the infamous Ayer Molek case; the �poison pen letter� in early 1996 which contained 112 allegations comprising 39 charges of corruption, 21 of abuse of power and 52 of misconduct, immoral and other indiscretions; the Chief Justice holidaying with a lawyer; the disclosure by a High Court Judge that he had received direction (or was that advice?) about a case before him by the then Chief Justice; and the greatly discussed cases of Lim Guan Eng and Anwar Ibrahim. A perusal of past issues of Aliran Monthly would enlighten the reader about these issues.

After the 1988 crisis, after the Mahathir-led assault on the Judiciary, the Judiciary rather than attempting to regain its loss in stature and independence wrongly focused its attacks on the Malaysian Bar and lawyers. The Malaysian Bar, which had been steadfast in their struggle to restore public confidence and the independence of the Malaysian judiciary throughout the crisis and after, became the focus of attack during this period. First, there was Manjeet Singh Dillon, the then Bar Council Secretary, who was cited for contempt for an affidavit he affirmed on behalf of the Bar Council. Subsequently, many lawyers were threatened with contempt and/or cited for contempt in the courts.

Dzaiddin - Initial Hopes Fade

Tun Mohamed Dzaiddin was then appointed the head of the Malaysian Judiciary and there was hope that under his leadership, the Malaysian Judiciary would travel the road to regain the quality and stature it once had in the period before 1988. But those hopes were shattered bit by bit. One of the Practice Directions issued towards the end of his term had the effect of further eroding the right of access to a lawyer.

Almost immediately after retirement, he joined a law firm. This sparked public discussion and debate as to whether it was proper, and its impact on the public perception of the Judiciary. The Malaysian Bar felt that there should be a �cooling off period� at the very least, whilst some even felt that retired senior members of the Judiciary (especially heads of the Judiciary) should not take up positions in law firms or other companies.

The government�s response was to look into amending the Judges Code of Ethics 1994 to include, possibly, the post-retirement conduct of judges. Despite the public controversy, Dzaiddin continued as consultant in that law firm.

Now we have a new Chief Justice, but it would be premature to judge him one way or the other.

Post 1998 judicial appointments

Article 125 of the Federal Constitution gives the power to the Prime Minister to initiate proceedings for the removal of judges. If the Prime Minister represents to the Yang di-Pertuan Agong that a judge ought to be removed, �then the Yang di-Pertuan Agong shall appoint a tribunal� which will make recommendation to remove or not to remove a particular judge. By the usage of the word �shall�, it seems that the Yang di-Pertuan Agong has no choice in the matter but to set up a tribunal.

Mahathir, by removing the head of the Judiciary and two Supreme Court Judges, had sent a clear message to the judiciary that could be simply stated as �if you do not do things according to my will, then you too will be moved�.

The removal of judges in 1988 clearly showed that it was not just a possibility or a threat but could become a reality if you didn�t behave as you should. The upheaval in 1988 has left a deep-seated fear in many of our judges.

Since then we see that only a few have been able to surmount that fear and have decided judiciously without fear and favour especially in cases involving the government or personalities and companies with links to the government.

Prior to the 1988 judicial crisis, the chairperson of the Malaysian Bar and other senior lawyers were consulted informally by the Lord President on the suitability of candidates before he made a recommendation for appointment as judges. After the crisis, this practice stopped.

In 1994 the Federal Constitution was amended to allow for the appointment of Judicial Commissioners (sort of �probationary judges�) who had all the powers of the judge but without the security of tenure, which is a safeguard required to protect and ensure the independence of the judiciary. These Judicial Commissioners are appointed on contract for an initial term of two years, and if found �satisfactory� the recommendation would be made by the Chief Justice (or Lord President as it was known before) to the Prime Minister.

In the July 2003 issue of the Malaysian Bar�s official newsletter, Infoline, Datuk Param Cumaraswamy, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, was reported as saying that the recent �promotions of Augustine Paul, Arifin Jaka and Pajan Sungh Gill will be perceived by the public as a reward for having �delivered.�� Likewise, the appointments of Hamid Omar and later Eusoff Chin as heads of the Judiciary were also possibly perceived by the public as a reward.

An Extraordinary General Meeting of the Malaysian Bar has been called for 4 October 2003 to discuss this important aspect of judicial appointments and other related matters.

Mahathir's Impact on the Judiciary

In my opinion, Mahathir believed that the Executive must lead and all others must follow. He seems to have not grasped the importance of the doctrine of separation of powers or the need for a strong and independent judiciary.

Similarly as the head of UMNO, the dominant party in the Barisan National coalition, which had always enjoyed more than a two-third majority in Parliament and the Senate (both together with the Agong being the Legislature), Mahathir effectively also had control of the Legislature. In his time as prime minister, Dr Mahathir successfully removed or weakened all possible checks and balances including the Agong and the Judiciary.

Mahathir, as Prime Minister, as provided for in the Federal Constitution plays a very important role in the appointment of the Chief Justice (or Lord President as it was then known), and in the appointment of the other judges. In the past 22 years as Prime Minister, he has naturally had an effect on the Malaysian Judiciary in terms of the membership and composition of the judiciary. After all, all judges are appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister. Other than the appointment of the Chief Justice , the Prime Minister has a duty to consult the Chief Justice and/or the heads of the different courts depending on which court the judge is being appointed to. All the Prime Minister has to do is consult, but the Yang di-Pertuan Agong - apparently from the words used - has no choice but to act on the advice of the Prime Minister.

He chose the �suitable� ones, but then some of these judges proudly from time to time demonstrated rare courage through their decisions � alas, they may now be considered �unsuitable� in the eyes of the Prime Minister.

But then, the Judiciary is also to be blamed. Judges when they accept this office, must put aside all preferences, bias and prejudice and uphold justice without fear or favour.

They must not be pro or anti Government, only pro the Constitution and pro the law. They must not be pro the big companies or pro the small man in the street, only pro justice and pro human rights.

They must not bother about tomorrow, about possible repercussions from the powerful, about their chances of elevation to higher courts and judicial office. They must never forget the oath that they have taken which includes

�...I will faithfully discharge my judicial duties in that office, that I will bear true faith and allegiance to Malaysia [not the Prime Minister, not the Executive, not the government], and will preserve, protect and defend its Constitution....�

The Judiciary should heed the recommendation in �Justice In Jeopardy: Malaysia 2000�, the report prepared by an international mission led by the International Bar Association.

�We recommend that the judiciary does all in its power, in the wider interest of justice, to counter the harshness of repressive legislation and overbearing action on the part of the executive. That is the role of the judiciary when faced with repression no matter where it comes from...In the present situation and in light of the experiences of 1988, this will require great courage. Even still, we consider it essential if the reputation of the judicial system in Malaysia is to be restored to what it was and what it should be.�

Wednesday, January 29, 2003

We need to seriously strive for reforms that will re-instill public confidence in the Judiciary

by Charles Hector

Far-reaching reforms are needed to re-instil public confidence in the Judiciary.

When in December 2000 , Tan Sri Hj Mohd Dzaiddin Hj Abdullah was appointed as the Chief Justice of the Federal Court, and hence the head of the Judiciary, the Bar Council had great expectations of him to rejuvenate the Malaysian Judiciary Ever since the 1988 Judicial Crisis which saw the then Lord President and two Supreme Court Judges dismissed, the Malaysian Bar never placed any great hope in Dzaiddin�s two predecessors.

But two recent events have caused the Malaysian public to question whether their hopes and aspiration for a renewed Dzaiddin-led Judiciary showing greater commitment to justice and the Rule of Law have been misplaced

First, the recent Federal Court decision in Anwar Ibrahim�s corruption case was basically an affirmation of the High Court decision which was earlier criticized not only by the Malaysian Bar but also international observers and groups. Some of the criticisms and concerns about the High Court trial of the former Deputy Prime Minster included:

the choice of the judge and the manner by which the judge was chosen to hear the case;

refusing bail;

expunging of evidence given under oath;

preventing the accused from raising every possible and conceivable defence;

compelling the defence to state beforehand what evidence the defence sought to adduce from various witnesses;

disallowing witnesses from testifying and making rulings as to relevancy without first hearing their testimony; and

citing and threatening defence lawyers with contempt proceedings including sentencing one of them to three month�s jail for contempt while discharging his legal duties to his client.

Second, there was the spectacle initiated by comments of a High Court Judge, while delivering a judgment in an accident case in the Penang High Court, about how a certain Court of Appeal Judge had been treating the former through the latter's judgments. In his written judgment, Justice R.K. Nathan accused Court of Appeal judge Gopal Sri Ram of making personal attacks against High Court judges, and targeting him (Nathan) for personal vilification in open court.

It may be good to recapitulate briefly the history of the Malaysian Judiciary, in particular the events that led to the slide in the public confidence of the Judiciary.

Role and Function

The Judiciary is the third arm of the government; the other two are the Executive and the Legislature. In a democracy, it is essential that there should be separation of powers among these three arms. Simply put, the Legislature (the Parliament) makes the Law. The Executive (the Prime Minister and the Cabinet) administers the affairs of state according to the Law. The Judiciary ensures that all is and was done according to law. The doctrine of separation of powers ensures a system of check and balance, and that there is no abuse of powers.

As the late Justice Eusoffe Abdulkader noted in his judgement in the Datuk Harun bin Haji Idris case, �The court stands as an arbiter in holding the balance between individuals and between the state and the individual, and will not have the slightest hesitation to condemn or strike down any statutory shelter for bureaucratic discrimination, any legislative refuge for the exercise of naked arbitrary power in violation of any of the provisions of the Constitution and equally any executive action purported to be made thereunder�

Independent and Fearless

To carry out its functions , the Judiciary must be independent, and Judges must be concerned only with upholding the cause of justice without fear or favour. The words of Sultan Azlan Shah, a former Lord President (or Chief Justice as the office is now called), during a Public Lecture in Universiti Sains Malaysia in 1986, adequately explains the need for judges to be independent:

�..The Judges are independent of all � the executive, Parliament and from within themselves � and are free to act in an independent and unbiased manner. No member of the Government, no Member of Parliament, and no official of any Government department has any right whatever to direct or influence the decision of any of the judges. It is the sure knowledge of this that gives the public confidence in the judges. The judges are not beholden politically to any government...�

In fact, at one time the Malaysian Judiciary was held in very high regard. The Chairperson of the Malaysian Bar in 1963, Datuk SM Yong, had this to say about the judiciary:-

�...every person, whether he is rich or poor, high or low, of whatever race, color or creed is equal in the eyes of the law. Justice will be administered without fear or favor...[and for this] we must have an impartial, incorruptible, and independent judiciary. Our Federal Court is such a judiciary.�

1988 Judicial Crisis

Wu Min Aun in his article, �Judiciary at the Crossroads� (in Public Law in Contemporary Malaysia) best explains the events that led to the erosion of public confidence in the judiciary.

�Public confidence in the judiciary started to slide when the executive commenced its attack as a result of several decisions which went against the government. Political rhetoric surrounding the amendments to Article 121 of the Federal Constitution merely exacerbated it. It deteriorated further when the Lord President and two Supreme Court judges were dismissed.�

The Ayer Molek Case

Then there was the controversial Ayer Molek Rubber Co case, which saw the Court of Appeal criticize strongly the decision of the High Court. The Court of Appeal went so far as to say that from the facts, it may �...give the impression to right thinking people that litigants can choose the judge before whom they wish to appear for their case to be adjudicated upon.� The Court of Appeal pointed out the judge had ignored provisions of the law, and also seemed to allege that injustice was perpetrated by the court.

Then the Federal Court, upon further appeal, not only overruled the Court of Appeal judgment but �also berated the appeal judges� for �bringing the administration of justice into disrepute�. The Chief Justice, Tun Eusoff Chin, in delivering the judgment of the Federal Court asked:

�Why should the learned judges of the Court of Appeal go on a frolic of their own and find fault with the High Court judge, criticize the conduct of the applicant�s solicitors in a very disparaging manner. Their own conduct would tend to show that they were themselves biased.�

Wu Min Aun added :

�The Malaysian Bar [claimed] that the Federal Court was not properly composed in accordance with the constitution. It pointed out that one of the panel members, a High Court judge, was not qualified to sit on the Federal Court bench. It was argued that apart from its permanent judges, only Court of Appeal judges could sit as Federal Court judges if the Chief Justice nominated them. The revelation that the Federal Court might not be properly constituted added fuel to further speculation that there might have been an elementary mistake at best and �stacking� of judges at worst. Whichever it was, the case did enormous damage on perception of the judiciary as an impartial adjudicator.�

The New Straits Times (3 Sept 1995) also stated in an article:

�...questions are already being asked as to why the courts and judges are speedy in hearing commercial cases, especially when big companies and big businesses were involved, and the apparent ease with which parties choose which courts to go to and which judge to seek out... This is inevitable when thousands of criminal and civil cases have been held up for years. Some remand prisoners have to languish in jail for years while waiting to stand trial.�

Poison Pen Letter

Let me again quote Wu Min Aun�s article:

�Then, in early 1996 a thirty-three page anonymous document alleging judicial misconduct surfaced. It was circulated among the legal fraternity accusing several judges of corruption, abuse of powers and personal misconduct. It was an extraordinary document containing 112 allegations comprising 39 charges of corruption, 21 of abuse of power and 52 of misconduct, immorality or other indiscretions. It claimed corrupt payments of RM50,000 with recipients graduating to accepting millions from named persons.� In July of the same year, the Attorney General stated that police investigations had revealed that the allegations contained in the poison-pen letter were �wholly untrue and baseless�

CJ's Holiday

To ensure the independence of the judiciary, it is essential that the conduct and behaviour of a judge should not give rise to suspicion that he is not impartial. In early 1998, when photographs of Tun Eusoff Chin holidaying with a lawyer who also had appeared before the same judge, were published on the Internet, it was a matter of public concern.

Later, in mid-2000, the Minister in the Prime Minister�s Department, Datuk Dr Rais Yatim, in response to a a question about a photograph showing the Chief Justice, said that it had been intimated to the Chief Justice that this was improper behaviour and that such socialising was not consistent with the proper behavious of a judicial personality. Calls for more serious action to be taken were not heeded.

Judge Receives "Directive"

In June 2001, High Court Judge Datuk Muhammad Kamil bin Ahmad when declaring the State election held in March 1999 for the Likas Constituency in Sabah, null and void, stated that he had received a directive over the phone to strike out the two election petitions without a hearing. The Malaysian Bar viewed this as an �affront to judicial integrity and independence of the learned judge and the Rule of Law� and called for action by the authorities concerned. Alas, nothing came out of that call.

Anwar's Corruption Case

Following the Federal Court decision dismissing Anwar�s appeal, Mah Weng Kwai, the President of the Malaysian Bar was quoted in Malaysiakini as saying, �But the Court of Appeal had found no miscarriages of justice and so did the Federal Court today. Anwar�s trial has gone through the due process of law, and we need to respect the decision of the court.� He was further quoted as saying, �If Anwar�s supporters, the reformasi group or the public feel that the court has been unfair, the general election is the best avenue for them to show their discontent.�

Mah was barraged with criticism from members of the Bar, the Kuala Lumpur State Bar Committee, NGOs and political parties. There were calls for his resignation.

Six days later, Mah issued another statement. Mah withdrew his earlier remarks, stating that they were merely his personal comments, not the statement of the President of the Malaysian Bar. In the second statement the Malaysian Bar expressed its dissatisfaction with the �unusual manner in which the trial itself was conducted.� This was consistent with the statement issued by R.R. Chelvarajah in his capacity as the Chairman of the Bar Council on 17 April 1999.

Mah is human and not infallible. He made a mistake, and it must be pointed out that previous presidents of the Malaysian Bar had made mistakes before.

Mah was the �soft target�, but in essence, the strong reaction to his initial remarks reflected the lawyers and the public�s dissatisfaction with the Federal Court decision.

When Dzaiddin was appointed as the Chief Justice of the Federal Court, the Kuala Lumpur Bar Committee newsletter questioned: �Can Dzaiddin Deliver?� This question must now be asked again.

Re-arrested After Acquittal

The action of the police in re-arresting 10 men who were acquitted of quintuple murders by the Ipoh High Court on 31 July 2002 is another cause for concern. The police used the Emergency (Public Order and Prevention of Crime) Ordinance 1969, a preventive detention law with powers similar to the infamous Internal Security Act(ISA), to arrest these men. Like the ISA, after 60 days, the Minister can issue a 2-year detention order.

The 10 men had been tried in open court. The High Court Judge after considering the evidence before the court had acquitted them. The action of the police is an act of �disrespect� to the High Court and the Judiciary. Is this symptomatic of the �slide in the public [or police in this case] confidence in the Judiciary�

Impartial and Incorruptible

At its highest levels, judges of the Judiciary is made up of the High Court, Court of Appeal and Federal Court. To place too high an expectation on the Chief Justice of the Federal Court alone to stop the slide in public confidence in the Judiciary may be wishful thinking.

Judges must understand that it is their role and duty to act in an independent and unbiased manner and to treat every person, whether rich or poor, of high or low status, of whatever race, color or creed equally in the eyes of the law. Judges must without fear or favour administer justice. Of course, when they are true to their office, they may be subjected to persecution from certain quarters. They may be transferred to courts in �far places�. They may never be elevated to higher courts. They may be victims of false charges. They may even be removed from office. But judges must be true to their office and calling.

The Malaysian Judiciary is not directly elected by the people. The judges are appointed. In some countries, there are elections for the members of the Judiciary. Maybe, it is time for us to seriously consider whether the constitution should be amended to allow judges to be elected.

Presently the appointment of judges is conducted under a shroud of secrecy. Maybe, there is a need to consider whether the names of future judges and/or judicial commissioners should be made public, and public objections be invited and considered before appointing them.

With the advent of the Internet, there has been an increase in public criticism of judgments and judges. This is important and necessary to stimulate judicial reform and improvements in the administration of justice and to forge an impartial, incorruptible, and independent judiciary for Malaysia. In this regard, Lord Denning's words are worth repeating:

�It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decision erroneous, whether they are subject to appeal or not. All that we ask is that those who criticize us will remember that, from the nature of our office, we cannot reply their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what is right."

It is easy to give up hope in our Judiciary, but if we do so all is lost. What we need more than ever before is to strive for far-reaching reforms that will re-instil public confidence in the Judiciary.

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